Abstract
The development of fundamental rights within the EU legal order has come to a climax through the entry into force of the Treaty of Lisbon in December 2009. Article 6 of the EU Treaty now recognizes the binding force of the EU Charter of Fundamental Rights, embraces the intention to accede to the European Convention on the Protection of Human Rights and Fundamental Freedoms and codifies the European Court of Justice's (ECJ) case law that fundamental rights shall constitute general principles of Union law. The question is how these changes made by the Lisbon Treaty, which mark a new stage in the shaping of the EU's commitment to the protection of fundamental rights, inform the relationship between fundamental rights and the classic Treaty economic freedoms, which have been vital in building Europe's 'economic constitution'. This contribution addresses the conflict that may arise between the Treaty economic freedoms and fundamental rights and assesses how the ECJ should balance these conflicting interests, considering the changed EU legal framework. In this paper the approach of the European Court of Human Rights (ECtHR), having to decide in cases where fundamental rights conflict with each other, will also be briefly touched upon and compared with the Court of Justice's approach.
Highlights
It was not until the adoption of the Maastricht Treaty (1992) that formal recognition was given to human rights as part of EU law
Long before the Maastricht Treaty entered into force, fundamental rights became intertwined with common market principles through the European Court of Justice’s case law
Article 6 TEU underlines the important status that fundamental rights have gained in EU law by stating that the Charter of Fundamental Rights of the EU shall have the same legal value as the Treaties; that the ‘Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms’ and that ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’
Summary
It was not until the adoption of the Maastricht Treaty (1992) that formal recognition was given to human rights as part of EU law. The Court held that, irrespective of the fact that in the areas in which the Community does not have competence the Member States remain, in principle, free to lay down the conditions for the existence and exercise of the rights at issue, they must exercise that competence consistently with Community law Another example is the Grogan case, which concerned a dispute between the Irish Society for the Protection of Unborn Children (SPUC) and Grogan and other students distributing information in Ireland on abortion clinics in other Member States.[16] One of the questions of the national court was whether the medical termination of pregnancy constitutes a service within the meaning of Article 57 TFEU. We have seen that the ECJ sometimes uses this technique as part of the proportionality test to review national measures in sensitive areas, such as gambling or healthcare, where Member States have remained primarily competent (see Dynamic Medien, Section 3.3 and hereafter, Section 5.2)
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